Trademark Fee Adjustment

Published date15 December 2020
Citation85 FR 81123
Record Number2020-27564
SectionRules and Regulations
CourtPatent And Trademark Office
Federal Register, Volume 85 Issue 241 (Tuesday, December 15, 2020)
[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
                [Rules and Regulations]
                [Pages 81123-81124]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-27564]
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                DEPARTMENT OF COMMERCE
                Patent and Trademark Office
                37 CFR Part 2
                [Docket No. PTO-T-2019-0027]
                RIN 0651-AD42
                Trademark Fee Adjustment
                AGENCY: United States Patent and Trademark Office, Department of
                Commerce.
                ACTION: Final rule; delay of effective date.
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                SUMMARY: On November 17, 2020, the United States Patent and Trademark
                Office (USPTO) published in the Federal Register a final rule on
                setting and adjusting trademark fees that is scheduled to go into
                effect on January 2, 2021. This final rule changes the effective date
                of one fee paid by international applicants under the Madrid Protocol
                from January 2, 2021, to February 18, 2021.
                DATES: The effective date of 37 CFR 2.6(a)(1)(ii), amended at 85 FR
                73197, November 17, 2020, is delayed from January 2, 2021, to February
                18, 2021.
                FOR FURTHER INFORMATION CONTACT: Catherine Cain, Office of the Deputy
                Commissioner for Trademark Examination Policy, at 571-272-8946, or by
                email at [email protected].
                SUPPLEMENTARY INFORMATION: The USPTO published a final rule (85 FR
                73197, Nov. 17, 2020) that set or adjusted certain trademark fees, as
                authorized by the Leahy-Smith America Invents Act, as amended by the
                Study of Underrepresented Classes Chasing Engineering and Science
                Success Act of 2018. Those fee changes allow the USPTO to continue to
                recover the prospective aggregate costs of strategic and operational
                trademark and Trademark Trial and Appeal Board goals (based on workload
                projections included in the USPTO fiscal year 2021 Congressional
                Justification), including associated administrative costs, and to
                further USPTO strategic objectives by better aligning fees with costs,
                protecting the integrity of the trademark register, improving the
                efficiency of agency processes, and ensuring financial sustainability
                to facilitate effective trademark operations.
                 Among the changes in the November 17, 2020 final rule, the USPTO
                amended the fee at 37 CFR 2.6(a)(1)(ii) addressing applications under
                section 66(a) of the Trademark Act, 15 U.S.C. 1141f. This fee, paid by
                international applicants designating the United States under the World
                Intellectual Property Organization's (WIPO) Protocol Relating to the
                Madrid Agreement Concerning the International Registration of Marks
                (Madrid Protocol), is set to increase from $400 to $500.
                 This final rule delays the effective date of the change to Sec.
                2.6(a)(1)(ii) because the treaty requires three months advance notice
                to WIPO, which then alerts international applicants, before an increase
                in the amount of the international application/subsequent designation
                fee can enter into force. On November 18, 2020, the USPTO provided WIPO
                with the required notice of the change to Sec. 2.6(a)(1)(ii). Thus,
                the effective date of Sec. 2.6(a)(1)(ii) is delayed from January 2,
                2021, to February 18, 2021, three months following the notification.
                Rulemaking Requirements
                 A. Administrative Procedure Act: This final rule revises the
                effective date of Sec. 2.6(a)(1)(ii). This action relates to the
                setting or adjusting of trademark fees and is a rule of agency practice
                and procedure and/or an interpretive rule pursuant to 5 U.S.C.
                553(b)(A). See JEM Broad. Co. v. F.C.C., 22 F.3d 32 (D.C. Cir. 1994)
                (``[T]he `critical feature' of the procedural exception [in 5 U.S.C.
                553(b)(A)] `is that it covers agency actions that do not themselves
                alter the rights or interests of parties, although [they] may alter the
                manner in which the parties present themselves or their viewpoints to
                the agency.' '' (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C.
                Cir. 1980))); see also Bachow Commc'ns Inc. v. F.C.C., 237 F.3d 683,
                690 (D.C. Cir. 2001) (rules governing an application process are
                procedural under the Administrative Procedure Act); Inova Alexandria
                Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling
                appeals were procedural where they did not change the substantive
                standard for reviewing claims). Accordingly, prior notice and
                opportunity for public comment are not required pursuant to 5 U.S.C.
                553(b) or (c) (or any other law). See Cooper Techs. Co. v. Dudas, 536
                F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and
                thus 35 U.S.C. 2(b)(2)(B), do not require notice and comment rulemaking
                for ``interpretative rules, general statements of policy, or rules of
                agency organization, procedure, or practice'' (quoting 5 U.S.C.
                553(b)(A)).
                 Moreover, the Director of the USPTO, pursuant to authority at 5
                U.S.C. 553(b)(B) and (d)(1), finds good cause to adopt the change in
                this final rule without prior notice and an opportunity for public
                comment or a 30-day delay in effectiveness, as such procedures would be
                impracticable and contrary to the public interest. Immediate
                implementation of the change to the
                [[Page 81124]]
                effective date of Sec. 2.6(a)(1)(ii) is in the public interest because
                it will allow the USPTO to meet its obligation under the Madrid
                Protocol to provide three months advance notice to WIPO and to
                international applicants of any changes to international application/
                subsequent designation fees. A delay of this final rule to provide
                prior notice and comment procedures and a delay in effectiveness are
                impracticable because they would allow the change to Sec.
                2.6(a)(1)(ii) to go into effect before the agency has provided WIPO
                with the required three-month advance notice, thereby defeating the
                purpose of this rulemaking. Therefore, the Director finds there is good
                cause to waive notice and comment procedures and the 30-day delay in
                effectiveness for this rule.
                 B. Regulatory Flexibility Act: As prior notice and an opportunity
                for public comment are not required pursuant to 5 U.S.C. 553 (or any
                other law), neither a Regulatory Flexibility Act analysis nor a
                certification under the Regulatory Flexibility Act (5 U.S.C. 601 et
                seq.) is required and none have been prepared. See 5 U.S.C. 605(b).
                 C. Executive Order 12866 (Regulatory Planning and Review): This
                rulemaking has been determined to be not significant for purposes of
                Executive Order 12866 (Sept. 30, 1993).
                 D. Executive Order 13771 (Reducing Regulation and Controlling
                Regulatory Costs): This rule is not an Executive Order 13771 regulatory
                action because this rule is not significant under Executive Order 12866
                (Jan. 30, 2017).
                Andrei Iancu,
                Under Secretary of Commerce for Intellectual Property and Director of
                the United States Patent and Trademark Office.
                [FR Doc. 2020-27564 Filed 12-14-20; 8:45 am]
                BILLING CODE 3510-16-P
                

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